On September 27, 2018, the Benefits Review Board (“BRB”) issued a published Robinson decision in Robinson v. AC First, LLC. Robinson addressed the concept of disability for an injured worker with delayed-expression post traumatic stress disorder (“PTSD”). Robinson will likely become the benchmark for the determination of the existence of a disability following a voluntary resignation from overseas employment, the deprivation of economic choice, and for the consideration of wage earning capacity for workers with PTSD. Brief Factual and Procedural Background: In Robinson, Claimant worked overseas for four years, from 2009 to March 31, 2014, at which time Claimant resigned. He returned to the United States on April 15, 2014. Then, Claimant began working stateside for Union Pacific on May 5, 2014, where he continues to work. On August 26, 2015, sixteen months after Claimant returned home, he sought medical treatment for PTSD. Claimant filed a Defense Base Act claim with April 15, 2014Read more

Last month, the Division of Federal Employees Compensation (“DFEC”) published FECA Bulletin No. 18-03. The bulletin addresses how the government agency will process an insurance carrier’s claims for reimbursement under the War Hazards Compensation Act (“WHCA”). Carriers apply for WHCA reimbursement after they pay a disabled contractor’s benefits pursuant to the Defense Base Act (“DBA”). FECA Bulletin No. 18-03 addresses psychological injuries, and the evidence that a carrier needs to submit to the government to receive reimbursement of the benefits it paid to the contractor. For some time now, insurance carriers have been concerned about the reception their evidence would receive at DFEC when applying for reimbursement. The concern was that the evidence they submitted would be too general or vague to warrant reimbursement. This concern trickled down into the underlying DBA claim, causing additional litigation for injured workers. With any luck, FECA Bulletin No. 18-03 will also trickle downRead more

This is the second part of an ongoing series devoted to exploring the minimal standards of medical fitness required for deployment or re-deployment to CENTCOM, as those standards apply to the Defense Base Act. Here, I address the psychological conditions which may preclude deployment. What is important for DBA claims is that these conditions also prevent re-deployment after an injured worker suffers a psychological injury as a result of his employment in a war theater. Knowing the minimal standards of medical fitness is a necessity. When an injured DBA contractor cannot return to their usual work, then they are presumed to be totally disabled. An insurance carrier can rebut the presumption by showing that the claimant can either return to their overseas work or engage in suitable alternative employment. Therein lies the reason why knowledge of the minimal standards is so important. If an injured worker cannot satisfy the minimal standardsRead more

On January 9, 2018, President Donald Trump signed Executive Order 13822. The order focuses on providing psychological treatment to veterans as they transition from uniformed service to civilian life. The reasoning behind the Executive Order is interesting, and the best statement about the Order’s genesis is the White House fact sheet. There is a heavy focus on delayed psychological problems, especially in the year following the transition from military service to civilian life. To combat the psychological problems faced after transition, the Order requires a joint action plan to expand inter alia tele-health treatment of psychological conditions. In my opinion, some of the same reasoning that the White House used to justify this Executive Order could apply to Defense Base Act contractors. Below, I’ve reproduced the White House Fact Sheets for Executive Order 13822, as well as the text of Executive Order 13822. White House Fact Sheets for Executive Order 13822: TheRead more

Chronic pain and psychiatric injuries can go hand in hand. So says a new scientific article from a group of highly specialized VA doctors entitled, Pain and psychiatric comorbidities among two groups of Iraq- and Afghanistan-era Veterans. The study was designed “to more precisely identify the prevalence and severity of pain and mental health comorbidities among . . . Veterans and service members . . . .” Not surprisingly, the wars in Iraq and Afghanistan have resulted in exceptionally high rates of postdeployment chronic pain, traumatic brain injury, Post Traumatic Stress Disorder, and other mental health and behavioral disorders. Simply put, Iraq and Afghanistan servicemembers are at high risk for both pain and psychological problems. The article goes into detail, stating: Data from this study confirm and extend initial reports regarding high prevalence of pain and psychiatric disorders among OIF/OEF/OND servicemembers who have returned from deployment. Using two geographically diverseRead more

In claims filed under the Longshore Act, there is no requirement that psychological injuries be accompanied by actual or threatened physical harm. So says the Fourth Circuit in its new unpublished decision, Ceres Marine Terminals, Inc. v. Director, OWCP. In a prior post, I wrote about the oral arguments in this case, and how employers and carriers approach psychological injury claims under both the Longshore Act and the Defense Base Act. The facts of this case are tragic. The claimant was operating a forklift when he struck and killed a co-worker. The claimant testified that the co-worker was bleeding from her mouth. Her leg was wrapped around the the axle of the forklift. While waiting ten minutes for the ambulance to arrive, the claimant stood ten to fifteen feet away from the co-worker. Once the co-worker was transported to the hospital, the claimant spent the day explaining the accident toRead more

Want to know what questions the Defense Base Act Carrier asked the psychological defense medical examiner to answer after your evaluation? Here is a list of the typical questions (which I am quoting): Within a reasonable degree of medical certainty and probability, is there substantive, reliable data to support that Claimant suffers from a mental illness? If so, please elaborate as to Claimant’s mental health condition. Is it your opinion, within a reasonable degree of medical certainty and probability, that Claimant’s mental health condition, if any, was caused, aggravated, or accelerated by his employment with Employer? Is it your opinion, within a reasonable degree of medical certainty and probability, that Claimant suffers from any pre-existing (before the reported work-related incident) mental health conditions that contribute to his current condition? If so, please elaborate. Is it your opinion, within a reasonable degree of medical certainty and probability, that Claimant has reachedRead more

I recently fielded an interesting question: for psychological testing, do judges prefer the MMPI-2 or the CAPS test? I don’t think there is a preference. It all goes to the weight of the evidence. From a practical standpoint, I see the MMPI-2 more than the CAPS test. But that is starting to change. With the rising number of providers using the CAPS test, particularly for veterans–many of whom worked as contractors–I think that CAPS is an important tool in PTSD cases. For others who might find the CAPS test interesting, I’ve quoted a webpage from the U.S. Department of Veterans Affairs’ National Center for PTSD: Clinician-Administered PTSD Scale for DSM-5 (CAPS-5) Description The CAPS is the gold standard in PTSD assessment. The CAPS-5 is a 30-item structured interview that can be used to: Make current (past month) diagnosis of PTSD Make lifetime diagnosis of PTSD Assess PTSD symptoms over theRead more

There’s an important psychological benefits case pending in the Fourth Circuit. The scope of the case–called Ceres Marine Terminals, Inc. v. Director, OWCP–is amazingly broad. And although it is a Longshore and Harbor Workers’ Compensation Act case, the ripple effect could cause considerable waves for defense contractors with psychological injuries. There are multiple issues in Ceres Marine–too many to address in a single blog post. For now, I am focusing on each party’s statements about psychological injuries under the Longshore Act, and by extension the Defense Base Act. The Briefs: First, let’s look at the written submissions from the parties. I’ve highlighted in bold some of the more interesting statements and phrases. Here is the Summary of the Argument section from Ceres Marine’s Opening Brief: This appeal has two primary issues. First, does the reasoning of the United States Supreme Court decision in Consolidated Rail Corp. v. Gottshall, 512 U.S.Read more

Depression often goes hand-in-hand with Post Traumatic Stress Disorder (“PTSD”). And that can ruin the sufferer’s quality of life. A recent scientific study focused on Veterans with comorbid Depression and PTSD. The report, entitled Impact of comorbid depression on quality of life in male combat Veterans with posttraumatic stress disorder, is based on a “large meta-analysis composed of 57 studies, across both military and civilian samples.” What did the researchers find? That there is a comorbitiy rate of 52% for Veterans with PTSD and depression. That’s pretty high. There isn’t a definitive explanation for the high prevalence of depression with PTSD. But, “[r]esearch has shown that PTSD has a deleterious impact on Veteran life quality, as Veterans with PTSD report increased rate of unemployment due to disability, decreased social and occupation-related functioning, and lower life satisfaction.” More information can be found through the embedded hyperlink (see above). But, here isRead more

I openly advocate maintaining a good, respectful working relationship with everyone involved in your case, from opposing counsel and insurance adjusters to your own doctors and experts. The end result of your litigation is to make sure that you recover all benefits to which you are entitled.